Suspension for misconduct was not industrial action under Federal legislation

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Suspension for misconduct was not industrial action under Federal legislation

See: http://www.airc.gov.au/alldocuments/PR933098.htmNational Tertiary Education Industry Union v Southern Cross University - AIRC - Duncan SDP - 16 June 2003.

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The AIRC has found it had no jurisdiction to consider the suspension of a university professor for alleged sexual harassment, as the events lacked the necessary attributes of industrial action under the Federal legislation and so the Commission did not intervene.

Background

The professor had been accused of sexual harassment and bullying by a doctoral student of his. He was invited by the university to provide a written response and in the meantime was suspended on pay.

The union sought an order under s127 of the Workplace Relations Act 1996 to stop or prevent industrial action.

No jurisdiction

Senior Deputy President Duncan stated:

‘For jurisdiction to be available in respect of s127 there must be industrial action taking place or as the section has it be threatened, impending etc.

'There are three specific actions by SCU [the employer] which the National Tertiary Education Industry Union (NTEU) considers industrial action for the purposes of establishing the jurisdictional basis for action under s127. They are (i) the suspension of Associate Professor Bronks; (ii) his removal by the Vice-Chancellor from his position as Head of School; and (iii) the physical relocation of Associate Professor Bronks.

'In this case SCU contends that none of the three impugned actions were, in the circumstances, industrial action. The first is the suspension of Associate Professor Bronks. It is to be noted that clause 35.6 confers a specific power on the Vice-Chancellor to suspend an employee, with or without pay where a Misconduct Investigation Committee has been established.

...

'However, whatever the true position the issue of the Commission's discretion is relevant. In the present case the suspension was to end on the working day next after the date of the hearing and, it is assumed, has now in fact ended. Even at the time of the hearing, this means that in the exercise of the discretion possessed by the Commission no order based on the suspension would issue.

'The second incident is the removal of Associate Professor Bronks as Head of School. The NTEU argues that the work as Head of School is an extension of the Associate Professors work as a level D academic, noting in particular the relevance of high administrative duties.

'I doubt that this gives rise to the position that the removal is, as a result industrial action for the purposes of s127. Even if it does I accept the SCU submission that it is an event in the past, one which can not be remedied retrospectively by action under s127.

...

The third incident is the physical relocation of Associate Professor Bronks. I do not consider this to be industrial action within the definition. It is administrative and is occasioned by the perceived need to separate the antagonists in the harassment issue which is at the heart of this matter. While I do not mean to imply that administrative action cannot also be industrial action in this case I reject the submission that the move imposes a limitation on the performance of work.’

The Commission declined to issue an order under s127.

See: National Tertiary Education Industry Union v Southern Cross University - AIRC - Duncan SDP - 16 June 2003.

 
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